Identifying the Client

Once a lawyer has agreed to act for someone, the next question is who that someone is. Agency law supplies the test: a principal manifests consent that another act on the principal's behalf and subject to the principal's control, and the agent consents to act that way.¹ Applied to lawyers, the client is the person on whose behalf the lawyer acts, and that person may differ from the one who pays the bill, signs the engagement letter, or sits across the desk.

The answer matters because the lawyer's duties follow the client. A lawyer owes diligence, communication, and confidentiality to the client, and owes loyalty as well, since a lawyer may not generally represent someone whose interests conflict with the client's.² A lawyer who misidentifies the client may keep the wrong person informed, reveal to a bystander what belongs to the client alone, or overlook a conflict because the person on the other side of it was never recognized as a client.

Three settings test the answer most often. In the first, one person pays and another receives the legal help. In the second, the client is an organization that can act only through people. In the third, a relative or companion joins the client at the lawyer's desk. Each setting tempts the lawyer to treat a second person as a client, and each resolves the same way: ask for whom the lawyer agreed to act.

Third-Party Fee Payors

Paying a lawyer's fee does not make the payor a client. The agency test looks for consent that the lawyer act on a person's behalf, and a payment manifests no such consent; it settles how the lawyer is compensated, not for whom the lawyer works.³ As you saw earlier, neither a signed retainer nor a paid fee is necessary to form the relationship. The converse holds as well: a paid fee does not form one.

A person who pays for another's representation is not a client on that basis alone. The payor is owed a duty enforceable in a malpractice action only under an express agreement to that effect or on other facts that create an implied relationship.⁴ Consent and control, the two features that make a person a principal, stay with the person whose matter the lawyer is handling. The fee buys neither, and the Model Rules confirm it by conditioning third-party payment on the lawyer's independent professional judgment remaining intact.⁵

Courts have applied the rule to payors in very different positions. In Fox v. White, a stepfather paid legal fees for his stepson, and the court affirmed dismissal of his malpractice suit against the lawyer.⁶ Helms v. Helms involved the payor of a wife's fees in her divorce action, and Krug v. Krug involved a man who paid the fees of the woman he later married, also in her divorce.⁷ The ties differ from case to case, yet the question stays the same: did the payor separately ask the lawyer to act, and did the lawyer agree or let reliance develop? Closeness to the client does not answer it.

Tying client status to consent, and not to the check, protects both loyalty and confidentiality. A payor's interests can differ from the client's: a parent who funds an adult child's defense may want a quick plea that avoids publicity while the child wants a trial. If payment made the parent a client, the lawyer would owe undivided loyalty to two people who disagree, and the parent could claim the child's confidences as a client's own. A payor who could steer the lawyer by threatening to stop paying would also hold the control that belongs to the principal.

The Model Rules nonetheless allow third-party payment, on conditions that answer these risks. A lawyer may represent a client whose fees someone else pays if the client is informed and consents, Rule 1.8(f)(1), and if the lawyer determines that the arrangement will not interfere “with the lawyer's independence of professional judgment or with the client-lawyer relationship,” Rule 1.8(f)(2).⁸ Consent lets the client learn of the payor and object before the arrangement begins. The independence condition answers the payor's leverage: a payor who can stop paying can press the lawyer, so the arrangement is acceptable only if that pressure cannot shape the advice.

Hypothetical Illustration

A father pays a firm's retainer to defend his adult son in a business-fraud investigation, and the son and the lawyer agree to the engagement. At a later meeting the father asks whether a guarantee he signed for the son's company puts his own savings at risk. The lawyer answers in detail and tells him how to handle the guarantee, without saying the advice falls outside the engagement. The father restructures the guarantee in reliance on that advice. The retainer is the same as before and still adds nothing. What changed is that the father sought legal advice for himself, relied on it reasonably, and met no effort by the lawyer to dissuade him, so the facts support an implied relationship with the father on that matter. Whether the lawyer may serve both father and son is then a conflicts question.

A fact pattern that stresses the payor's involvement, such as a mother who funds the case and calls the lawyer every week, tempts you to name the payor as a client. Resist it, and ask two things: did the payor separately ask the lawyer to act for the payor, and did the lawyer agree or stay silent while the payor reasonably relied? If not, the duties of diligence, communication, and confidentiality run to the person represented.⁹ The lawyer may not give the payor information relating to the representation without the client's informed consent, the payor cannot override the client's decisions, and the payor has no malpractice claim.

Organizational Clients

Model Rule 1.13(a) answers the identification question for a lawyer who works for an institution: “A lawyer employed or retained by an organization represents the organization acting through its duly authorized constituents.”¹¹ The entity is the client. Its constituents, such as officers, employees, and owners, are the people through whom it speaks, because an entity has no voice of its own. The lawyer therefore takes instructions from and gives advice to authorized constituents, yet serves the organization.

Agency vocabulary fits this arrangement. When a chief executive retains a lawyer for the company, the behalf in question is the company's, so the company is the principal whose consent and control define the relationship.¹² The executive instructs the lawyer as the principal's voice and does not become a principal personally. The fee payor stayed out of the client's chair for the same reason: a person's seat in the conversation, whether at the checkbook or at the head of the table, does not settle for whom the lawyer agreed to act.

The practical result appears in malpractice. The entity can sue its lawyer for negligence, but its CEO, its general counsel, its lower-level employees, and its shareholders cannot do so in those capacities, because the lawyer owes none of them the duty of care.¹³ Shareholders own the entity, but ownership gives them a stake in the lawyer's performance and no relationship with the lawyer.

The rule has this shape because the interests of people inside an organization do not always match the organization's. An officer may want a questionable transaction to stay buried while the corporation's interest lies in learning exactly what happened. If every person who instructed the lawyer became a client, the lawyer would owe undivided loyalty to the officer and the corporation at once, and each divergence between them would leave the lawyer unable to serve either fully. Confidences would tangle the same way. Making the entity the client fixes the lawyer's loyalty on the organization's interests, whoever is on the telephone. How a lawyer must respond when a constituent acts against the entity is a separate question, and it can be answered only after the entity has been identified as the client.

A fact pattern that stresses one executive's contact with the lawyer, through daily calls, a signature on the engagement letter, and advice delivered to that person alone, invites you to treat the executive as the client. Ask whether the executive acted as the entity's authorized voice and whether anyone separately asked the lawyer to act for the executive personally. If neither occurred, the duty runs to the entity.

The entity-as-client rule is a default, and it leaves room for more than one client. A lawyer may also represent a constituent, by express agreement or by implication, and then both the entity and the constituent are owed duties enforceable in a malpractice action.¹⁴ Rule 1.13(g) permits the dual representation but cautions that it must comply with the conflicts rules.¹⁵

The implied route works as it does for any client, so a constituent who asks the lawyer for personal advice and is left to rely on it without correction may become a second client without any engagement letter. The inference does not run in reverse. A lawyer who represents a constituent of an organization does not, by virtue of that relationship alone, also represent the organization itself, as New Destiny Treatment Center, Inc. v. Wheeler illustrates.¹⁶

Family and Companions

When an older person comes to a lawyer with a relative or caregiver, the agency test points to the older person. The lawyer is asked to address that person's situation, so the older person is generally the client, and the duties of diligence, communication, and confidentiality run to that person.¹⁸ The companion does not become a principal by driving, by speaking up, or by caring about the outcome.¹⁹

Companions fill different roles, and the lawyer must learn which one applies before deciding how far to deal with that person. The companion may be a driver, an interpreter, a co-owner of the property under discussion, the likely holder of a proxy decision-making authority the older person is considering, a caregiver, or a source of moral or financial support. The precise role sets the limits of the lawyer's interaction with the companion.²⁰ A driver or interpreter carries messages and has no stake in the outcome. A co-owner, a prospective proxy, or a financial supporter has something the legal work may touch, so the lawyer must keep track of whose objectives the representation serves.

The duty of loyalty drives the inquiry. A lawyer may not generally represent someone whose interests conflict with the older person's, and the lawyer cannot apply that limit without knowing whose interests sit on each side.²¹ The limit can seem contrived in elder law, where the family is often supportive, cohesive, and motivated by honorable intentions. Good motives do not remove the risk, though. If Mother creates a joint bank account with Son to help him handle her finances, his access may let him drain it for his own benefit and defeat her plan to split her estate between Son and Daughter.²² The lawyer must also consider undue influence. Does Mother want Son as co-signer, or is the arrangement mainly his idea? If she lives in his home, overreaching becomes more likely, and an ongoing pattern of behavior can manifest undue influence without any overt threat.²³ Treating the older person as the client gives the lawyer a fixed point from which to weigh these questions.

The Model Rules do not treat “the family” as a client, yet they permit representing several people, even several generations, as long as there is no concurrent conflict of interest. When a concurrent conflict exists, the lawyer may go forward only if the lawyer reasonably believes that the lawyer can provide competent and diligent representation to each affected client and each gives informed consent, confirmed in writing, under Rule 1.7(b)(1) and (4).²⁴ The commentary directs the lawyer to ask whether the conflict will materially interfere with the lawyer's independent professional judgment in proposing alternative courses of action, and it explains that the writing requirement exists to impress on clients the seriousness of the decision they are being asked to make.²⁵ A companion becomes a second client the way anyone does, through the two consents the agency definition requires: the companion must ask the lawyer to act, and the lawyer must agree or let reasonable reliance develop.²⁶

The two scenes differ in one fact. The son separately asked for the lawyer's work and the lawyer agreed, while the daughter only helped her father take part in his own representation. Involvement alone does not settle the question, so a relative who does most of the talking remains a helper until the relative asks the lawyer to act. Payment follows the same logic, as the preceding subsection showed: a supporter who funds the work is not a client on that basis, and the lawyer may represent the older person only if the older person is informed and consents and the lawyer determines that the arrangement will not interfere with the lawyer's independence of professional judgment or with the client-lawyer relationship.²⁷ When the roles in a multi-person engagement cannot be sorted out satisfactorily, withdrawal is an option, but Rule 1.16(b)(1) requires that it not have a material adverse effect on the interests of the family members involved.²⁸

A fact pattern that describes a warm, close family, with one child who makes every call and attends every meeting, tempts you to treat the family, or its most active member, as the client. Ask whose situation the lawyer was engaged to address, what role the companion plays, and whether the companion separately asked the lawyer to act and the lawyer agreed. If so, the Rule 1.7 consent requirements control, and the written confirmation from each client becomes the issue.